The Volokh Conspiracy
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Will Litigation Over Title 42 "Public Health" Migrant Expulsions Soon Become Moot When Biden Ends the Covid Emergency?
If so, Title 42 expulsions might finally end. But it's not a done deal yet.
The Biden Administration's recent decision to terminate the Covid-19 state of emergency on May 11 may clear a path to ending Title 42 "public health" expulsions of migrants at the southern border. That's because this step could end up mooting out the litigation surrounding previous efforts to terminate the policy.
In December, the Supreme Court decided to consider a case challenging the Biden Administration's decision to end Title 42 expulsions. The Title 42 expulsion policy was begun by the Trump Administration in March 2020, supposedly for the purpose preventing the spread of the Covid-19 virus to the United States, though actually more as a tool for restricting immigration generally. It was then continued under Biden, despite overwhelming evidence that it did little or nothing to control the spread of the disease. Some 2 million people have been summarily expelled under the policy, including many who would otherwise have had the right to stay in the US in order to apply for asylum. The expulsions have caused great suffering, subjecting many those expelled to violence, extortion or persecution.
When the Biden Administration finally tried to end the expulsions in May of last year, a group of "red" states file a lawsuit claiming it hadn't followed the requirements under the Administrative Procedure Act (APA). A federal district court issued an injunction blocking termination of the policy. Meanwhile, a separate lawsuit filed by opponents of Title 42 expulsions secured a ruling indicating that it was illegal, under the APA, to continue them. For technical reasons, the latter decision would have taken precedence over the former, and put an end to the policy by late December. But, on December 27, the Supreme Court stayed the ruling against the expulsions when it decided to hear that case—not to consider the merits, but to review the lower court's denial of a motion to intervene filed by several red states. This had the indirect effect of reinstating the earlier district court ruling blocking termination of Title 42 expulsions.
Since, then however, President Biden announced that he is going to end the Covid-19 national emergency on May 11. Title 42 expulsions do not depend the emergency declaration for their legal authority. The Trump and Biden Administrations both argue they are authorized by a provision of the 1944 Public Health Service Act that (with later modifications) gives the Centers for Disease Control the power to bar migrants for purposes of preventing the "introduction" of disease into the United States. However, the current CDC expulsion order says it will end upon the termination of the Covid emergency.
If the emergency does indeed end, then the Title 42 expulsion order will also terminate "naturally." That would obviate arguments that the Administration failed to use APA notice and comment procedures that may be required in situations where a regulatory policy changes. If Title 42 expulsions end as originally planned (upon termination of the Covid emergency), that would not be a change in policy at all, and there would be no need for any special procedures!
If Title 42 expulsions end as planned, that could also moot out the litigation challenging their legality, and thereby also moot the Supreme Court case considering whether red states should be allowed to intervene. You can't intervene in a case that's over with, anyway. Or, at least, so the Administration claims in its recently filed Supreme Court brief in that case:
Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case. The government has also recently announced its intent to adopt new Title 8 policies to address the situation at the border once the Title 42 orders end…..
By its terms, the operative Title 42 order terminates upon "the expiration of the Secretary of HHS' declaration that COVID–19 constitutes a public health emergency." 86 Fed. Reg. at 42,830…..
The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot: Be cause the Title 42 order would have " 'expired by its own terms,' " this suit seeking only prospective relief would "no longer present a 'live case or controversy.' " Trump v. International Refugee Assistance, 138 S. Ct. 353, 353 (2017)…. In that event, the government will ask the court of appeals to vacate the district court's judgment and remand with instructions to dismiss private respondents' suit as moot.… And because the mooting of the underlying case would also moot petitioners' attempt to intervene, it would likewise be appropriate for this Court to resolve the intervention dispute by vacating the court of appeals' order denying intervention and remanding with instructions to dismiss petitioners' motion as moot.
The administration is adopting a similar strategy in the case where a district court ruled against the effort to terminate the expulsions.
If the mootness argument prevails, the Administration will get to end the Title 42 expulsions, as it has longed promised to do, while simultaneously also getting rid of lower-court decisions that constrained its authority. Those would likely end up being vacated (with the exception of a March 2022 DC Circuit ruling that put some constraints on the expulsion, and an earlier ruling barring expulsion of unaccompanied minors).
The cases could well end up being resolved that way. But it isn't a done deal yet. The cases won't become moot until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is handling the ruling against the effort to end expulsions) to complete all their deliberations so quickly. But they could potentially do so. The courts might also find technical reasons to conclude that one or both of these cases remain live controversies, despite the end of the national emergency. I will leave that issue to people with greater expertise on mootness doctrine.
In addition, the Administration could potentially decide to extend the Covid emergency again, if the situation with the virus gets worse, or if the White House decides an extension is politically convenient. For a long time, Biden has been playing a kind of double game with Title 42 expulsions, simultaneously claiming to want to end them, yet also continuing to defend them in court and even expand their use. As with Trump before him, Biden's use of Title 42 expulsions has been guided far more by political considerations than scientific ones. It's possible that the Administration will reverse course again, if it sees some advantage in doing so.
Biden's hypocrisy is matched by that of the red state politicians litigating against the end of Title 42 expulsions. These state governments oppose nearly all other pandemic-mitigation measures (often with good reason). Yet they also seek to indefinitely perpetuate Title 42 public health expulsions, even as they claim the public health emergency should have been ended much sooner than Biden plans.
In my view, Title 42 expulsions were illegal from early on, once it became clear that Covid-19 was established in the United States, thus making it impossible to claim that the CDC order was somehow blocking its "introduction." If the statute is interpreted as giving the CDC broad power to block migrants from anywhere where there is a communicable disease -regardless of whether it is already present in the US—that would raise serious constitutional problems by essentially giving the executive near-total control over immigration policy.
I would have preferred a straightforward decision holding that the Title 42 policy is illegal. But if the mootness strategy puts an end to the expulsions by May, that might be preferable to many more months of ongoing litigation, during which time expulsions might well have continued.
We'll soon see what the courts do with the mootness issue—and whether the Biden Administration sticks to its current plan to terminate the national emergency on May 11.